ACLU questions Missouri's supply of execution drug

Rights group raises concerns that state's stockpile of sodium thiopental is dwindling and may have expired

Published January 6, 2011 7:54PM (EST)

A civil rights group is raising concerns about Missouri's supply of a drug crucial to the execution process as the state prepares to execute its first convict in nearly two years.

The American Civil Liberties Union of Eastern Missouri announced Thursday that the Missouri Department of Corrections has a dwindling supply of sodium thiopental, and that what is on hand is nearing its expiration date. The ACLU uncovered that information through a freedom of information request.

Sodium thiopental is the first of three drugs used in executions, an anesthetic that renders the condemned inmate unconscious.

Corrections officials asked in recent days about the potential shortage have told The Associated Press that the state has an adequate supply for the execution of Richard Clay, who is scheduled to die at 12:01 a.m. Wednesday for killing a southeast Missouri man in 1994. Scott Holste, a spokesman for Gov. Jay Nixon's office, did not immediately respond to interview requests.

The ACLU's investigation found Missouri has 50 units of sodium thiopental in stock, which the group said would be sufficient for the execution and for a rehearsal of the execution. Previous execution rehearsals used 10 units. But the ACLU said Missouri didn't use the drug during its most recent quarterly execution rehearsal in July, and that this may have been because the state wants to stretch its inventory with an eye to future executions.

ACLU attorney Tony Rothert, said that in earlier rehearsals, corrections department staff practiced how to prepare and mix all three of the drugs used in the execution process. But sodium thiopental was not used in the July rehearsal, raising concerns that the staff may not correctly prepare the drug during Clay's execution, meaning that the convict could possibly feel pain.

The ACLU is also worried that drugs so close to their expiry might not work correctly, Rothert said.

The Corrections Department had previously told AP the supply's expiration was 2011, but was not more specific. A document supplied by the state to the ACLU shows it expires March 1.

"These documents show that the state has been cutting corners during its training," said Brenda Jones, director of the ACLU of Eastern Missouri. "The inadequate training and nearing expiration date for the drugs raise serious constitutional questions. We do not believe that the state can guarantee that Mr. Clay will not be killed in a cruel and unusual manner."

Some executions across the U.S. have already been put on hold because of the shortage. Just last month, California called off its first execution in five years after prison officials were unable to secure sodium thiopental despite a frantic two-month search.

Sodium thiopental is used in 35 states, and many are trying to barter with states that do have supplies, or are seeking alternative drugs.

Missouri has no choice but to use sodium thiopental because the state's execution protocol requires it.

Clay would be the first Missouri inmate executed since May 2009 and the second since October 2005. Executions had been on hold while the courts determined whether Missouri's three-drug system could reasonably guarantee that the inmate would not suffer through the process.

Jennifer Herndon, Clay's attorney, said she will file for a stay of execution Friday, partly due to concerns over the small supply and the approaching expiration date. She believes her client was wrongly convicted.

"He didn't commit the crime and the prosecution's conduct created the conviction," Herndon said.

Clay was convicted of first-degree murder in the shooting death of Randy Martindale, of New Madrid. Martindale's wife, Stacy Martindale, was convicted of second-degree murder and sentenced to 15 years in prison.

According to prosecutors, Stacy Martindale was having an affair with a friend of Clay's and offered her lover $100,000 to help her kill her husband to get out of the marriage and collect on his $100,000 life insurance policy. They say the lover turned her down, but Clay took the job and shot Randy Martindale four times in his home on May 19, 1994. His two sons found the body.

Missouri has executed 67 people since the death penalty was reinstated in 1989.

By Jim Salter

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